The decision-making process of the Magistrate cannot be faulted for non-consideration of aspects not raised before it.

JUDGMENT

Amit Borkar, J. - The applicants who are original accused nos.1 to 3 are challenging order under section 143A of the Negotiable Instruments Act, 1881 (hereafter "NI Act", for short) directing applicants to deposit 20% of the amount of the cheque.

2. In so far as the case of applicants nos.2 and 3 is concerned, this Court by detailed judgment dated 8th March 2023 in a group of matters, lead matter being Criminal Application No.886 of 2022, held that authorized signatory of a cheque issued by the company is not the "drawer" in terms of section 143A of the NI Act. Therefore, for the reasons stated in the said order, it has to be held that applicants nos.2 and 3 being directors of applicant no.1/company, cannot be directed to pay the amount under section 143A of the NI Act. Therefore, the impugned order to the extent of applicants nos.2 and 3 is quashed and set aside.

3. In so far as the application filed by applicant no.1/company (Drawer) is concerned, the learned senior advocate invited my attention to various documents filed on record to urge the following three contentions: (i) reasons do not support the impugned order; (ii) the cheques in question are forged; chargesheet for the offence of forgery has already been filed against the complainant; however, this material factor has not been considered by the Magistrate while passing an order against applicant no.1; and (iii) previous payments made by applicant no.1, as reflected in reply to demand notice, have not been considered in the impugned order.

4. Per contra, the learned advocate for the complainant invited my attention to the reply to the application under section 143A and reply to the statutory notice. He submitted that in the reply filed to an application under section 143A only contention raised on behalf of applicants nos.2 and 3 is that they are not drawers, and it is applicant no.1/company which is liable. Except this, no other defence was raised before the Magistrate. Petitioner No. 1 failed to contest the application. He submitted that the contentions raised before the Magistrate were restricted to the liability of applicants nos.2 and 3 as not being a drawer. The submissions made in the present petition were not argued before the Magistrate and, therefore, considering the limited scope of inquiry under section 143A, the impugned order need not be interfered with at the instance of applicant no.1.

5. Rival contentions fall for consideration.

6. In the judgment dated 8th March 2023, this Court emphasized early disposal of applications under section 143A of the NI Act. The purpose and object of inserting section 143A are to grant immediate relief to the complainant by holding a summary inquiry under section 143A of the NI Act. The reasons that the Magistrate needs to assign while holding an inquiry under section 143A must show application of mind to the merits of the case. While holding such an inquiry, the Magistrate is not expected to consider questions of fact which should have been raised before it. True it is that while considering such an application, prima facie finding regarding the liability of the accused need to be recorded. However, such adjudication need not travel beyond prima facie ingredients of section 138 of the NI Act.

7. The issue of forgery, as raised by applicant no.1, being purely a question of fact which was undisputedly not raised before the Magistrate, the decision-making process of the Magistrate cannot be faulted for non-consideration of this aspect. The proviso to section 143A protects the rights of litigants like applicants, which takes care of a situation where a party is directed to pay the amount which is permitted to be withdrawn subject to filing an undertaking that he will reimburse the accused amount withdrawn along with interest at the prevailing bank rate.

8. The next contention regarding part-payment/full amount of cheque amount is also the question of fact. In the absence of such contention being raised before the Magistrat